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Diminished Responsibility Flashcards

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1
Q

The concept of DR is initially derived from…

A

Scottish common law

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2
Q

Has a long history but vague applications such as…

A

Galbraith v HM Advocate 2002 JC 1

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3
Q

DR allows for the accuseds….

A

mental state to grant jury the ability to reduce culpability

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4
Q

When was DR introduced into English Law?

A

Homicide Act 1957 - in response to the death penalty

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5
Q

DR Definition

A

defendant must show that he/she suffered from an abnormality of mental functioning, arising from a recognised medical condition, which provides an explanation for committing the killing. It must be shown that the abnormality substantially impaired his/her ability to understand the nature of his/her conduct, form a rational judgment, and exercise self-control.

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6
Q

Inequity problem was

A

…should we be imposing the death penalty on those who have committed these crimes, in relation or as a result of their mental condition which they have no direct control over?

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7
Q

DR allows for…

A

…culpability to be reduced on basis of their mental state

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8
Q

DR is alternate to…

A

…loss of control defence, where D suffers some kind of mental conditions

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9
Q

The Homicide Act S.2(3)

A

If DR is established then D
s offences has to be manslaughter rather than murder so jury cannot convict D of murder as D lacks MR criteria

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10
Q

The Homicide Act; 1957 - S.2(2)

A

There is a legal burden of proof on D to prove the case of DR where in loss of control defence, burden of proof lies on prosecution

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11
Q

DR was in response to…

A

…The defence of insanity, which burden of proof of DR also lies on the defendant

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12
Q

Wilcocks [2016] EWCA Crim 2043

A
  • D wanted to show both DR and LOC meaning there were 2 BOP; do not confuse jury; stick to one point
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13
Q

Where there is a clear case of successfully proving DR…

A

…the prosecution are unable to charge D with voluntary manslaughter (as there is no such defence)

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14
Q

Golds [2016] UKSC 61

A

Allows for a situation where no trial is necessary which means the issue will not be necessary

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15
Q

Reform of law:

A
  1. The Law commission made a number of reports relating to the reform of Homicide Act as it related to DR
  2. Law commission report on partial defences to murder (n.290)2004
  3. Home Office, Consultation paper on Murder, Manslaughter and Infanticide (2008) - this paper led to Coroners Justice Act 2009
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16
Q

CJA 2009 (s.52)

A

A person who kills or is party to the killing of another, must not be convicted of murder if D was suffering from an abnormality of mental functioning

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17
Q

CJA 2009 s.52(1)

A
  1. Arose from a medical condition
  2. Substansially impaired D’s ability to do one or more of these things…
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18
Q

CJA 2009 s.52(1)(a)

A
  1. Substansially impairs D’s ability to do one or more of these things….
    a. To understands the nature of D’s own conduct
    b. To form a rational judgement
    c. To exercise self control
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19
Q

CJA 2009 s52 (1)(b)

A

For the purposes of subsection 1(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is significant contributory factor in causing D to carry out that conduct

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20
Q

CJA 2009 s.52(3)

A

Provides an explanation for D’s act and omissions in doing or being party to the killing

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21
Q

Golds [2016]

A

Lord Hughes:
a. Did the accused suffer from an abnormality of mental functioning?
b. If so, did it arise from a recognised medical condition?
c. If yes to both, did it substantially impair one or more abilities listed in subsection 1(A)?
d. If yes to all of those, did it cause or significantly contribute to his killing of V?

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22
Q

Abnormality of mental functioning…

A

A state of mind so different from that of an ordinary human being that the ‘reasonable man’ would term them abnormal (Byrne [1960] 2 QB 296)

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23
Q

The concept of mental functioning puts it…

A

…more in line with medical consensus (medicalises legislation)

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24
Q

“Trial by jury, not Trial by experts”

A

In Bunch [2013] EWCA Crim 2498 it was held that in cases of DR medical evidence is ‘practical necessity’

25
Q

Dowds [2012] EWCA Crim 281

A

Argued ‘acute voluntary intoxication’ it would effectively upset the balance within the criminal law relating to the efficacy of defences by way of intoxication so courts rejected it

26
Q

Substantial impairment criteria

A

a. Does the person have nay mental abnormalities
b. Are they medically recognised?
c. Does it impair one’s ability to do some of the things listed in 1A

27
Q

The main issue came out of Gold’s [2016]

A

The trial judge allowed the jury to consider the effect that the condition has on their abilities, but didn’t give any direction as to what was meant by substantial impairment however Supreme court said that ‘substantial’ should have its natural meaning

28
Q

Defence has to prove at least 1 of the 1A…

A

…has been substansially impaired

29
Q

DR similarities to insanity

A

could this ability include acts whereby d may not have has understanding of legal wrongs but had understanding or moral wrongs

30
Q

To form a rational judgement;

A

This is not about the outcome but also all stages of the process of reasoning (Conroy [2017] EWCA Crim 81)
The whole of the thought process was also considered in the case of Blackman [2017] EWCA Crim 190 (by way of PTSD)

31
Q

To exersize control;

A
  1. this does not necessarily imply a loss of full control unlike othher defences
  2. There is also a difference between this and the loss of control defence isn’t here the burden of proof on the defence
32
Q

Insanity - N’Naughten Rules (1943) 10 Cl & F200

A

Importance of insanity in criminal law has been reduced by two developments;
1. Introduction of DR in HA 57’
2. Abolition of death penalty for murder in 1965

33
Q

Insanity can…

A

…be pleaded as a defence to any crime

34
Q

M’Naghten (1943) 10 Cl & F200 - 2 key criteria

A

(1) Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proven
(2) To establish the defence of insanity, it must be proven, at the time of committing the act, the defendant was labouring under such a defect of reason, arising from disease of the mind, that he did not know the nature and quality of the act

35
Q

Insanity; BOP

A

There is a presumption that D is sane unless the contrary is proven

36
Q

General principle of Criminal Law…

A

that the onus is on the prosecution to prove the case against D beyond reasonable doubt

37
Q

Authority

A

Jones, T H., ‘Insanity, Automatism and the Burden of Proof on the Accused’ Law Quarterly Review (1995) vol 111, pp. 475 -516.

38
Q

Defect of reason

A

Has been upheld to imply a cessation of a relevant deliberative faculty thus, D must be suffering from impairment that deprives him of his ability to reason - R v Clarke 1972 1 All ER 219

39
Q

Disease of the mind

A

It is a legal concept not a medical one, and may encompass those wo would not be regarded as insane by the medical profession. ie. Sleepwalkers (Burgess), epileptics (Sullivan) and diabetics (Hennessy)

40
Q

Criteria of whether a condition amounts to disease of the mind;

A
  1. It must arise from psychosis, organic or functional disorder, injury or other inherent conditions
  2. If the defect arises from some factor external to D, insanity cannot be established
41
Q

Insanity cases to contrast

A

R v Quick [1973] QB 910

and

R v Hennessy [1989] 2 All ER 9

42
Q

Judgement of…

A

Devlin J in R v Kemp [1957] QB 399

43
Q

Key cases for insanity;

A

Bratty v A-G for Northern Ireland [1963] AC 386
Sullivan [1984] AC 156
R v T [1990] Crim LR 256
Burgess [1991] 2 QB 92
Parks [1992] 95 DLR (4th) 27

44
Q

Nature and quality of the act;

A

Has been construed narrowly to concern only the physical quality of the conduct, circumstances and consequences
R v Codere [1916] 12 Cr App R 21
R v Windle [1952] 2 QB 836

44
Q

Nature and quality of the act;

A

Has been construed narrowly to concern only the physical quality of the conduct, circumstances and consequences
R v Codere [1916] 12 Cr App R 21
R v Windle [1952] 2 QB 836

45
Q

Knowledge that the act is wrong

A

R v Johnson [2007] EWCA Crim 1978: the defence of insanity withdrawn from D because psychiatrists agreed that D knew that what he had done was against the law, although one of them considered that D did not know it was morally wrong

46
Q

Knowledge that the act is wrong - Loake

A

Loake v Crown Prosecution Service [2017] EWHC 2855 (Admin): even if the offence charged is one of strict liability (and so requires no mens rea), D can rely on the defence so long as he does not know that what he is doing is wrong.

47
Q

Effect of the Defence

A

If D succeeds in establishing insanity, then the verdict is ‘not guilty by reason of insanity’

For non-murder charges the judge can choose from; hospital order, guardianship order, suspension and treatment order or absolute discharge

48
Q

ECHR Article 5;

A

Everyone has the right to liberty and security of the person, no one shall be deprived of his liberty save in following cases
(e) the unlawful detention…of persons of unsound mind

49
Q

Windrup v Netherlands (1972) 2 EHRR 387

A

“In the Court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’

50
Q

Proposals for reform

A
  • Draft criminal code (1989) - clause 35 relaces term insanity with ‘mental disorder’ & clause 34 provides definitions for the new defence
  • Butler report on mentally abnormal offenders (Cmnd 6244, 1975)
  • Griew, E. ‘Lets implement Butler on Mental disorder and crim’ [1984] CLP 47
    -Simpson, A.W.B., ‘The Butler Committee Report: the Legal Aspects’ (1976) BJ Crim 175
51
Q

DR III

A

DR is a special defence in that is it purely a defence to murder; a successful defence results in a verdict of not guilty of murder but manslaughter

Source: The partial defence of diminished responsibility is set out in s.2 of the Homicide Act 1957. But this section was reformed by the Coroners and Justice Act 2009 s.52-53, so that s.2

52
Q

The partial defence of diminished responsibility is set out in s.2 of the Homicide Act 1957. But this section was reformed by the Coroners and Justice Act 2009 s.52-53, so that s.2 now reads:

A

(a) Arose from a recognised medical condition
(b) Substantially impaired D’s ability to do one or more of the things mentioned in subsec A
(c) Provides an explanation for D’s act’s and omissions in doing or being party to the killing

53
Q

Key recent cases for DR

A

R v Dowds [2012] EWCA Crim 28
R v Golds [2014] EWCA Crim 748
R v Brennan [2014] EWCA Crim 2387
R v Joyce and Kay [2017] EWCA Crim 647

54
Q

DR; BOP

A

D bears the BOP for proving DR on the balance of probabilities. D may plead not guilty on murder but guilty of manslaughter on grounds of DR. When should court accept such a plea?
Cox [1968] 1 WLR 308
Vinagre [1979] 69 Cr App R 104

55
Q

Operation of the DR defence:

A

S.2(1) HA has 4 comp that msut be established;

  1. Abnormality of mental functioning [Byrne] [1960] 2 Q.B. 396
  2. Arising from a recognised medical condition
  3. Substantial impairments of D’s ability
  4. Provides an explanation for D’s acts and omissions
56
Q

DR and Intoxication

A

Stewart [2009] 1 WLR 2507; consumption of alcohol by one with dependency may not be completely involuntary - inability to resist
Dowds [2012] WLR 43; Acute voluntary intoxication can be recognised medical/psychiatric condition but such a condition will not bring defence of DR as it is not capable of giving rise to an abnormality of mental functioning

57
Q

Reform of DR:

A

Law Commission Report 290 ‘Partial Defences to Murder’ (2004)

Law Commission Report 304 ‘Murder, Manslaughter and Infanticide’ (2006) proposed changes to the law on murder, under which DR would convert a ‘first degree’ murder into a ‘second degree’ murder. This formed the basis of the 2009 reforms.

What are the arguments for abolishing DR? What are the arguments in favour of retaining DR? How far is the defence now about ‘ability’ rather than ‘responsibility’, and what might this mean?

Criminal Law (16 decks)

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